If you are applying for indefinite leave to remain (ILR) as a qualifying visa holder who can apply to settle in the UK, you must satisfy the continuous residency condition.

You must demonstrate that you have continuously resided in the United Kingdom for 2, 3, 5, or 10 years, depending on the settlement requirements of your existing visa. For example, for a skilled worker visa and British citizenship, you need to satisfy the continuous residence requirement in the UK for 5 years. To qualify for the ILR long residence path, you must demonstrate 10 years of continuous residence.

What does Continuous Residence mean?

In essence, continuous residence means that you need to prove that you have been residing in the UK continuously excluding permitted absent days to apply for Settlement. This means that to prove continuous residence, you must prove that you have been in the UK for 180 days or more during any 12-month period unless the reason for your stay abroad is permitted under the relevant visa category.

For example, a Skilled Worker visa requires you to live in the UK for five consecutive years before applying for permanent residence. Your continuous residence may have been interrupted if you spent more than 180 days outside the UK in a 12-month period for reasons not permitted. Time spent in the UK on other routes may be combined to meet the qualifying period for ILR. When applying for Skilled Worker Permanent Residence, you can include time spent on other work routes such as any Tier 1 Visa, Scale-up Worker, Innovator, Global Talent or Representative of an overseas business.

Calculating Continuous Residence

To satisfy the continuous residence requirement, you must have not spent more than 180 days outside of the United Kingdom in any rolling 12-month period throughout the qualifying five-year residence period for your ILR application. Depending on the date of your visa, the twelve-month rolling period is calculated as follows:

• The twelve-month period ends on the same date of the year as the date of your application for ILR for time spent on a visa granted prior to 11 January 2018; or
• In any twelve-month rolling period for time spent on a visa granted after 11 January 2018.

There are exceptions to the 180-day absence rule, which means that some absences from the United Kingdom do not count towards the 180-day rule.

• Travel disruptions due to natural disasters, military conflicts, or pandemics. (The Home Office has confirmed that COVID-19 falls within this category and exceptional COVID-19-related concessions have been issued)
• Compelling and compassionate personal circumstances. This includes your own severe illness or the severe illness or death of a close family member.
• Research activity as a sponsored employee on a skilled worker visa, if your job is sponsored under one of a number of specified occupation codes, such as chemical scientist, a biological scientist and biochemist, physical scientist, social and humanities scientist, natural and social science professional, research and development manager, and higher education teaching professional.
• Research conducted on a global talent visa if authorized by The Royal Society, The British Academy, The Royal Academy of Engineering, or UK Research and Innovation.

Time spent overseas due to pregnancy, maternity, paternity or adoption-related leave is to be treated in the same way as any other absence, that is, within 180 days in any 12 months.

Absences due to employment, whether related to the applicant’s job in the UK or not, count towards the 180-day maximum each year.

Who does not qualify for continuous residence in the UK?

If you are present in the UK but your period of continuous residence does not count when;

• You are convicted of a criminal offence and sentenced to imprisonment (unless the sentence is suspended) or you are detained in an institution such as a hospital under a hospitalization order;
• You are made the subject of a deportation order, exclusion order, or exclusion direction;
• You are made the subject of a removal direction; or
• You are in the United Kingdom, but your presence in the United Kingdom is unlawful.

However, even if you are an overstayer, there are a few exceptions that allow you to apply for settlement, even though not all of your time in the United Kingdom was lawful.

Document for Continuous Residence

In order to qualify for Indefinite Leave to Stay, applicants must demonstrate that they have continually resided in the United Kingdom. The application could be refused if the applicant cannot demonstrate continuous residence.

The applicant must submit evidence in the form of a letter detailing the reason for the absence together with supporting documentation. Examples include medical documents, birth or death certificates, and evidence of travel disruptions to travel arrangements.

In the future, the Home Office will update its guidance to reflect any further permissible reasons for excessive absences. When preparing an application, it is crucial that applicants carefully review the applicable document.

We have had many successful cases despite the fact that our clients have excessive absences, including where certain requirements have not been met. If you need legal advice on absences for ILR application or you need any other advice, please leave a message.